Kahn v. East Side Union High School Dist.

Citation75 P.3d 30,31 Cal.4th 990,4 Cal.Rptr.3d 103
Decision Date28 August 2003
Docket NumberNo. S105735.,S105735.
CourtUnited States State Supreme Court (California)
PartiesOlivia KAHN, a Minor, etc., Plaintiff and Appellant, v. EAST SIDE UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

Offices of Patrick R. McMahon, Patrick R. McMahon, San Jose, Seema A. Savur, Lydia J. Carlsgaard; Rhoads Appellate Group and Steven R. Rhoads, Greenbrae, for Plaintiff and Appellant.

Robinson, Calcagnie & Robinson and Sharon J. Arkin, Newport Beach, for California Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Hoge, Fenton, Jones & Appel, Needham, Davis, Kirwan & Young, Mark E. Davis, Marc J. Cardinal and Kirsten M. Fish, for Defendants and Respondents.

Hancock Rothert & Bunshoft, John E. Fagan, Tahoe City, Paul J. Killion, San Francisco, Joseph P. Collins, Los Angeles, and Jill Penwarden, Tahoe City, for California Ski Industry Association as Amicus Curiae on behalf of Defendants and Respondents.

Horvitz & Levy, Julie L. Woods, Encino, and Robert H. Wright for The American Youth Soccer Organization, Little League Baseball, Incorporated, California State University, The University of California and Golden Eagle Insurance Corporation as Amici Curiae on behalf of Defendants and Respondents.

Gene D. Vorobyov for Cities of San Luis Obispo, San Pablo, Santa Paula and Tracy as Amici Curiae on behalf of Defendant and Respondent East Side Union High School District.


This case presents a question concerning the proper application of the doctrine of primary assumption of risk. At the time of her injury, plaintiff was a 14-year-old novice member of defendant school district's junior varsity swim team. She was participating in a competitive swim meet when she executed a practice dive into a shallow racing pool that was located on defendant school district's property and broke her neck. She alleged that the injury was caused in part by the failure of her coach, a district employee, to provide her with any instruction in how to safely dive into a shallow racing pool. She also alleged lack of adequate supervision and further that the coach breached the duty of care owed to her by insisting that she dive at the swim meet despite her objections, her lack of expertise, her fear of diving, and the coach's previous promise to exempt her from diving.

In Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight), we considered the proper duty of care that should govern the liability of a sports participant for an injury to a coparticipant. We concluded that, in recognition of the circumstance that some risk of injury is inherent in most sports, and in order to avoid the detriment to a sport that would arise from discouraging participants from vigorously engaging in the activity, it is appropriate to hold that a participant breaches a duty of care to a coparticipant only if he or she "intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." (Id. at p. 320, 11 Cal.Rptr.2d 2,834 P.2d 696.) In the present case, we recognize that the relationship of a sports instructor or coach to a student or athlete is different from the relationship between coparticipants in a sport. But because a significant part of an instructor's or coach's role is to challenge or "push" a student or athlete to advance in his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability, we conclude that the same general standard should apply in cases in which an instructor's alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student. A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is "totally outside the range of the ordinary activity" (ibid.) involved in teaching or coaching the sport.

Applying this standard to the present case, we conclude that, on the basis of the declarations and deposition testimony filed in support of and in opposition to defendants' motion for summary judgment, the Court of Appeal majority erred in determining that the doctrine of primary assumption of risk warranted entry of summary judgment in defendants' favor. We conclude that the totality of the circumstances precludes the grant of defendants' motion for summary judgment. Specifically, we refer to evidence of defendant coach's failure to provide plaintiff with training in shallow-water diving, his awareness of plaintiff's intense fear of diving into shallow water, his conduct in lulling plaintiff into a false sense of security by promising that she would not be required to dive at competitions, his last-minute breach of this promise in the heat of a competition, and his threat to remove her from competition or at least from the meet if she refused to dive. Plaintiff's evidence supports the conclusion that the maneuver of diving into a shallow racing pool, if not done correctly, poses a significant risk of extremely serious injury, and that there is a well-established mode of instruction for teaching a student to perform this maneuver safely. The declarations before the trial court raise a disputed issue of fact as to whether defendant coach provided any instruction at all to plaintiff with regard to the safe performance of such a maneuver, as well as to the existence and nature of the coach's promises and threats. Under these circumstances, the question whether the coach's conduct was reckless in that it fell totally outside the range of ordinary activity involved in teaching or coaching this sport cannot properly be resolved on summary judgment. Accordingly, the judgment of the Court of Appeal is reversed.


On October 11, 1995, plaintiff Olivia Kahn brought this action through her mother Sandy Kahn as guardian ad litem. Plaintiff's complaint named East Side Union High School District (District), Andrew McKay (McKay), and Does 1-10 as defendants. Plaintiff alleged generally that on October 13, 1994, she was present on the District's property to participate in a swim meet as a member of the Mt. Pleasant High School women's junior varsity swim team. She broke her neck while attempting a practice dive from a starting block into the three-and-one-half-foot-deep racing pool located at the school.

Plaintiff alleged that McKay, a district employee who was her coach on the swim team, negligently failed to train, supervise, or control the swim team members to protect them adequately against diving accidents, and that McKay negligently directed her to dive off a starting block during competition, without giving her adequate training or supervision, thus proximately causing her injury.1 After filing their answer, defendants moved for summary judgment. They contended generally that plaintiff assumed the risks inherent in the sport of competitive swimming when she voluntarily joined the swim team and dove into the pool on the day she was injured.

The declarations and the deposition transcripts that were submitted in support of and in opposition to defendants' motion for summary judgment reveal the following facts.

Mt. Pleasant High School has a deep swimming pool used for diving and water polo, as well as a racing pool used by the school's swim teams. The racing pool is three and a half feet deep at each end. On the deck in front of each of the six swimming lanes in this pool is a starting block standing 18 inches above the water level. These specifications conform to the then applicable guidelines formulated by the 1994 National Federation of State High School Associations.

Plaintiff was a 14-year-old freshman at Mt. Pleasant High School when she joined the school's junior varsity swim team. Two coaches were employed by the District and supervised the swimming program: defendant Andrew McKay and Kathleen Chiaramonte-Tracy. Plaintiff did not have prior experience as a competitive swimmer, but she was a competent swimmer and had executed dives into deep water on a recreational basis. She recalled that during a team practice session, coach McKay directed other team members to help her practice diving off the deck of the diving pool into deep water. Coach Chiaramonte-Tracy observed her dives, plaintiff asserted, and stated that plaintiff needed more practice. Teammates remarked that plaintiff had gone in too deep. Plaintiff had a deep-seated fear that she would suffer a traumatic head injury from diving into shallow water, and had so informed the two coaches when she joined the team in September. She alleged that during the few weeks between the commencement of the swim season and the accident, the coaches failed to offer her any instruction or training in shallow-water racing diving, nor, prior to the date of her accident, did she receive such instruction from her teammates. McKay assured her that, although three out of the four team members who participate in a relay must dive into the pool, plaintiff would not be required to dive at meets. Rather, she would be the team member who started from inside the pool. At the two or three meets that preceded the occasion on which plaintiff was injured, McKay directed plaintiff to execute the first leg of the relay race, which caused her to start in the water rather than from the deck of the pool.

Plaintiff asserted that McKay informed her, minutes before the meet was to begin on October 13, 1994, that this time he would not permit her to start her relay from inside the pool. She panicked and begged him to change the...

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